WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Boursorama SA v. Estrade Nicolas
Case No. D2017-1463
1. The Parties
The Complainant is Boursorama SA of Boulogne Billancourt, France, represented by Nameshield, France.
The Respondent is Estrade Nicolas of Milano, Italy.
2. The Domain Name and Registrar
The disputed domain name <bousorama.org> is registered with Ascio Technologies Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 28, 2017. On July 28, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 31, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 17, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 6, 2017. The Respondent did not submit any response. On August 25, 2017, the Technical and Billing contact of the disputed domain name sent an email communication to the Center in which it indicated that it had "forwarded [the Center's] written notice to the owner of the domain ʻbousorama.orgʼ". Accordingly, the Center notified the Respondent's default on September 8, 2017.
The Center appointed Knud Wallberg as the sole panelist in this matter on September 19, 2017. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant was founded in 1995 and is now leader in its three core businesses: online brokerage, financial information on the Internet and online banking. In France alone the Complainant had over 750,000 customers in 2015.
The Complainant is the owner of several registrations of the trademark BOURSORAMA including the European Union Trade Mark registration No. 001758614 registered on October 19, 2001.
The Complainant also owns a number of domain names that includes the trademark BOURSORAMA, of which the domain name <boursorama.com> is used for the Complainants main website.
The disputed domain name <bousorama.org> was registered on July 26, 2017. There is currently no active website attached to the disputed domain name.
5. Parties' Contentions
The Complainant states that the disputed domain name <bousorama.org> is confusingly similar to its trademark BOURSORAMA. The Complainant contends that the deletion of a letter "r" in the word "boursorama", and the use of the generic Top-Level Domain ("gTLD") ".org" are not sufficient elements to escape the finding that the disputed domain name is confusingly similar to the Complainant's trademark.
The Complainant contends that the Respondent has no rights or legitimate interest in the disputed domain name. The Respondent is not affiliated with the Complainant nor authorized by or related to the Complainant in any way. The fact that the Respondent used the disputed domain name for a website, on which it displayed a content that was highly similar to the official website of the Complainant and showed a false account service connection page, cannot constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use.
Given the distinctiveness of the Complainant's trademarks and reputation, the Complainant further claims that the Respondent has registered the domain name with full knowledge of the Complainant's trademark BOURSORAMA. The Complainant also contends that the Respondent registered and has used the disputed domain name with the intention of taking advantage of Complainant's trademarks by passing itself off as the Complainant.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy directs that a complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name <bousorama.org> is confusingly similar (in the sense of the Policy) to the Complainant's registered trademark BOURSORAMA. The disputed domain name incorporates this mark in its entirety with the omission of the letter "r". The gTLD ".org" does not dispel a finding of confusing similarity in the present case.
The Panel finds that the conditions in paragraph 4(a)(i) of the Policy are therefore fulfilled in relation to the disputed domain name.
B. Rights or Legitimate Interests
It is clear from the facts of the case that the Complainant has not licensed or otherwise permitted the Respondent to use its trademark.
Given the circumstances of this case, and in particular the way that the Respondent has been using the disputed domain name (discussed below) the Panel finds that the Complainant has established that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not produced, and indeed there is no other evidence of the types of circumstances set out in paragraph 4(c) of the Policy that might give rise to rights or legitimate interests in the disputed domain name on the part of the Respondent in these proceedings.
Consequently, the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy are also fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy provides an example of circumstances which shall be evidence of registration and use in bad faith:
(i) circumstances indicating that the respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location or of a product or service on the respondent's website or location.
Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name has been registered and is being used in bad faith.
Given the circumstances of the case including the evidence on record of the longstanding of use of the Complainant's trademark, and the distinctive nature of the mark BOURSORAMA, it is inconceivable to the Panel in the current circumstances that the Respondent registered the disputed domain name without prior knowledge of the Complainant and the Complainant's mark. Further, the Panel finds that the Respondent could not have been unaware of the fact that it chose a domain name which could attract Internet users in a manner that is likely to create confusion for such users.
The Panel therefore finds that the disputed domain name was registered in bad faith.
As to the use of the disputed domain name the Respondent was using the disputed domain name for what appears to be a phishing scam to deceive customers of the Complainant to reveal their contact information and passwords by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's activities. This constitutes bad faith use under the Policy, see, inter alia, National Westminster Bank plc v. Abdelilah Jadron, WIPO Case No. D2013-2232; NAS Rentals Holdings, Inc. v. Domains By Proxy LLC and Allison Mills, WIPO Case No. D2013-1812; Valero Energy Corporation, Valero Marketing and Supply Company v. Maurine flavour seafoods, WIPO Case No. D2013-1849 and Accor and SoLuxury HMC v. Kelvin Osas, Ke, WIPO Case No. D2017-0692. The fact that the website was deactivated by the Respondent's hosting provider after having received a request from the Complainant to do so, and that it still is inactive, does not alter this finding.
Noting that the disputed domain name incorporates a registered and widely-known trademark, that no Response has been filed, and that there appears to be no conceivable good faith use that could be made by the Respondent of the disputed domain name, and considering all the facts and evidence, the Panel therefore finds that the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <bousorama.org> be transferred to the Complainant.
Date: October 3, 2017